CCP
Brad Smith’s Comments on Advance Notice of Proposed Rulemaking in Response to McCutcheon v. FEC
The Commission should also review the limitations on corporate and labor union separate segregated fund solicitations. Fundraising appeals are speech fully-protected by the First Amendment, and restrictions such as 11 C.F.R. § 114.6, which limits separate segregated funds to making “a total of two written solicitations for contributions” to employees who are not “stockholders, executive or administrative personnel, and their families” may be excessive. That regulation was written before the widespread use of e-mail, and should be revised.Finally, the Commission should take this opportunity to “affirm[] that Internet activities by individuals and groups of individuals face almost no regulatory burdens under the Federal Election Campaign Act.” Internet Communications, 71 Fed. Reg. 18,589, 18590 (Apr. 12, 2006). As the Commission has previously found after a full notice and comment period, Internet communications involve “minimal barriers to entry, including [] low cost and widespread accessibility,” and are “distinct from other media in a manner that warrants a restrained regulatory approach.” Id. at 18,589. They were in no way implicated by the McCutcheon ruling, and ought not to be burdened by additional regulation. “The need to safeguard Constitutionally protected political speech allows no other approach.” Id. at 18,590.As the Supreme Court noted just a few Terms ago, campaign finance laws ought to be interpreted so as to provide for more speech and less censorship. FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 474 (2007). This should be the guiding principle for all future actions taken by the Commission.
A Response to Ken Vogel
By Zac MorganStrictly speaking, the government never backed down from the idea that a book with minimal political advocacy could be prohibited—such as Chief Justice Roberts’ hypothetical posed at the first oral argument. They simply suggested that a book published might have a good case if it challenged the statute.The Citizens United Court noticed this loophole: “The Government also suggests that an as-applied challenge to § 441b’s ban on books may be successful, although it would defend § 441b’s ban as applied to almost every other form of media including pamphlets. The Government thus, by its own position, contributes to the uncertainty that § 441b causes. When the Government holds out the possibility of ruling for Citizens United on a narrow ground yet refrains from adopting that position, the added uncertainty demonstrates the necessity to address the question of statutory validity.” 558 U.S. at 333.Thus, the Court, “[i]n the exercise of its judicial responsibility, [found it] necessary for the Court to consider the facial validity of § 441b. Any other course of decision would prolong the substantial, nationwide chilling effect of § 441b’s prohibitions on corporate expenditures.” Id.
Independent Groups
Washington Journal: Campaign Finance and Citizens United Ruling
Commissioner Lee Goodman talked about the new rules on political party funding, the future of political speech online, the fifth anniversary of the Supreme Court’s Citizens United ruling, and his one-year term for 2014 as chair of the Federal Election Commission (FEC).
SCOTUS/Judiciary
Daily Signal: Can a Judicial Candidate Request Campaign Contributions?
By Hans von SpakovskyHowever, Lanell Williams-Yulee arguesthat the Florida ban on personal solicitation is a content-based regulation that “prohibits speech at the core of the First Amendment – the speech of candidates for elective office.” She points out that Florida is being selective in its supposed concern over corruption: the state has the same interest in preventing quid pro quo corruption “with respect to other elected officials but limits its ban on solicitations of financial support to judicial candidates.”Most importantly according to Williams-Yulee, nothing prevents the judicial candidate from being “told who donated to her campaign (and how much they gave) and who did not” or sending thank-you notes to the donors. The judicial candidate can even serve as the treasurer of her campaign. Therefore, the prohibition can’t be “justified as necessary to prevent bias when the candidate is free to learn who donates and to acknowledge contributors’ assistance to her campaign.”
Tax Financing
Washington Post: How public funding of elections makes politics even more polarized
By John SidesPublic funding of elections — that is, relying on tax revenue more than private donations to fund candidate campaigns — is a popular campaign financereform proposal, if one that many Americans don’t fully embrace. Public funding is often thought to free candidates from the burden of fundraising and reduce the influence of wealthy donors and special interests. That all sounds good. Who likes “special interests,” after all? Now, new research shows that public funding has an unexpected consequence: increased polarization. That is, public funding makes it harder, not easier, to elect moderate candidates.
Candidates, Politicians, Campaigns, and Parties
More Soft Money Hard Law: Houston Has a Problem: The Constitutional Problems with Temporal Bans on Contributions
By Bob BauerRestrictions on the timing of campaign finance activity have met with mixed results in the courts. The injunction just issued in Houston blocks a ban on candidate fundraising in municipal elections to have taken effect except for the period beginning February of each election year through early the following year. Gordon v. City of Houston, No. 14-CV-3146 (S.D. Tex. Jan. 9, 2015). Other, but not all, cases have turned out badly for bans on contributions during legislative sessions.The various “temporal” bans may be different in one particular or the other, but all impose an absolute ban on activity for a defined period of time. This is probably the decisive point, putting aside all the more sophisticated features of constitutional argument: political activity that is constitutionally protected most of the time is, at other times, prohibited altogether. The state must show that it is accomplishing something with means well-tailored, no more restrictive than necessary, to the regulatory purpose of preventing corruption or its appearance. And this is hard to do when it is justifying an “absolute” ban over a sustained period of time on otherwise constitutional activity.
The Hill: Santorum, top backer gathering support
By Cameron JosephFormer Sen. Rick Santorum (R-Pa.) and his main financial backer, billionaire Foster Friess, are gathering supporters together to plot out another presidential bid.The two are hosting a meeting in Arizona this weekend, according to The Washington Post, that will be attended by other potential donors as well as Santorum staffers from his last campaign and early primary states.The meeting is the latest in a string of gatherings Santorum has held as he gears up for another run.
The New Yorker: Why Obama Should Pardon Don Siegelman
By JEFFREY TOOBINThroughout Siegelman’s legal ordeal, the Supreme Court has been in the process of deregulating American politics, most notably in the 2010 Citizens Uniteddecision. In that case, the Justices found that money is speech—that contributing to a political campaign amounts to a protected activity under the First Amendment. As the appeals court in Siegelman’s case noted, the charges in his case “impact the First Amendment’s core values—protection of free political speech and the right to support issues of great public importance. It would be a particularly dangerous legal error from a civic point of view to instruct a jury that they may convict a defendant for his exercise of either of these constitutionally protected activities.”It seems clear that Siegelman was conducting the seedy, but routine, business of contemporary American politics. Scrushy contributed because he wanted something in return, which is why many, if not most, people contribute to political campaigns. (George Will made this point in a column in defense of Siegelman.) Why do “bundlers” become Ambassadors in congenial countries? Why do local contractors support mayoral candidates? Why do real-estate developers give to prospective (and incumbent) governors? Because they want something. Siegelman was convicted because the quid pro quo was too “explicit”—but, beyond the conversation about what Scrushy might want, there was no clear evidence that it was. Thanks to the courts, the line between illegal bribery by campaign contribution and the ordinary business of politics has all but disappeared. Throwing a man in prison for activity at the murky barrier between the two is simply unjust.
Washington Post: RNC set to issue rules to cut, regulate presidential debates
By Dan Balz and Philip RuckerSAN DIEGO — Republican leaders on Friday plan to unveil new rules for presidential debates, marking the most aggressive effort yet by a national party committee to limit the number of forums and to shape the environment for the nominating season.Reacting to what many in the party concluded was a chaotic and ultimately costly series of debates in the 2012 campaign, a task force of the Republican National Committee has spent months seeking to devise a set of rules that will bring more order to the process, include more conservative outlets as sponsors and establish sanctions for candidates who violate the rules.RNC Chairman Reince Priebus said in an interview Thursday that he regarded the 2012 debates as “an embarrassment and ridiculous” for the party.
